5 January 2022 - Navigable Waters Protection Rule Vacatur
The full text of the statement is available on the U.S. Army Corps of Engineers Headquarters website.
The Environmental Protection Agency and U.S. Army Corps of Engineers (“the agencies”) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule (“NWPR”) nationwide and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies are working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation.
Please see the remaining content of the statement on the U.S. Army Corps of Engineers Headquarters website.
27 December 2021 - Army Corps of Engineers announces new and revised Nationwide Permits
U.S. Army Corps of Engineers published a final rule in the Federal Register that reissues 40 nationwide permits and issues one new nationwide permit for work in wetlands and other waters that are regulated by Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. The final rule was published in the Federal Register today. The decision documents for these nationwide permits are available at www.regulations.gov (docket number COE-2020-0002).
7 December 2021 - EPA, Army publish Proposed Rule "Revised Definition of Waters of the United States"
On 7 December 2021, EPA and the Department of the Army (“the agencies”) published a proposed rule: Revised Definition of “Waters of the United States,” which would define the scope of waters protected under the Clean Water Act. This proposed rule would officially put back into place the pre-2015 definition of “waters of the United States” (WOTUS), updated to reflect consideration of Supreme Court decisions. This familiar WOTUS approach had been in place for decades and would solidify the rules of the road while the agencies continue to consult with stakeholders to refine the definition of WOTUS. The Federal Register notice announcing the EPA’s intention to revise the 2020 Rule is available at: https://www.federalregister.gov/documents/2021/12/07/2021-25601/revised-definition-of-waters-of-the-united-states.
The agencies will hold three virtual public hearings on the proposed Rule in January 2022. Information on how to participate will be available on EPA’s website.
2 December 2021 - Water Quality Certifications and Corps Permitting
On October 21, 2021 the U.S. District Court for the Northern District of California issued an order vacating and remanding the Environmental Protection Agency’s 2020 regulations implementing Section 401 of the Clean Water Act. On November 18, 2021, after a temporary pause on permit decisions reliant on a Section 401 water quality certification or waiver completed under the vacated regulations, Corps districts resumed making decisions on all permit applications and requests for nationwide permit verifications. As part of that decision making process, districts will coordinate with certifying authorities on water quality certifications that are potentially impacted by the vacatur order.
Additional information regarding the vacatur can be found on EPA’s website at: https://www.epa.gov/cwa-401/2020-clean-water-act-section-401-certification-rule. Questions and answers regarding the 2020 rule vacatur can be found on EPA's website at: https://www.epa.gov/cwa-401/qa-2020-rule-vacatur.
17 November 2021 - Recission of the 30 June 2020 NWPR Memo, "EPA and U.S. Army Corps of Engineers Process for Elevating and Coordinating Specific Draft Determinations under the Clean Water Act (CWA)"
After careful consideration, the U.S. Environmental Protection Agency and the Department of the Army have rescinded the memorandum “U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) Process for Elevating and Coordinating Specific Draft Determinations under the Clean Water Act (CWA),” signed by EPA on June 26, 2020 and Army on June 30, 2020. The memorandum established a process by which the Corps and EPA (together, the agencies) intended to elevate to their headquarters for coordination certain case-specific and stand-alone CWA determinations under paragraph (a)(1) of the Navigable Waters Protection Rule (NWPR). The NWPR did not change the definition of traditional navigable waters and retained the agencies’ longstanding “guidance on determining whether a water is a ‘traditional navigable water’ for purposes of the Rapanos Guidance, the Clean Water Act (CWA), and the agencies’ CWA implementing regulations.” However, by establishing new procedures for one category of traditional navigable waters, the 2020 elevation memorandum created an unnecessary extra step for making traditional navigable waters determinations that the agencies have been making for many years. Therefore, the agencies are rescinding that memorandum, and retaining their legal memorandum on traditional navigable waters, which has remained unchanged since 2007. The legal memorandum, “Legal Definition of ‘Traditional Navigable Waters,’” can be found at https://www.epa.gov/wotus/legal-definition-traditional-navigable-waters.
2 November 2021 - Final 2020 National Wetland Plant List (NWPL)
The U.S. Army Corps of Engineers, as part of an interagency effort with the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the U.S. Department of Agriculture Natural Resources Conservation Service, is announcing the availability of the final 2020 National Wetland Plant List (NWPL). The Federal Register Notice for the 2020 NWPL update can be found here: https://www.federalregister.gov/documents/2021/11/02/2021-23891/national-wetland-plant-list
The NWPL provides plant species wetland indicator status ratings, which are used in determining whether the hydrophytic vegetation factor is met when conducting wetland delineations under the Clean Water Act and wetland determinations under the Wetland Conservation Provisions of the Food Security Act. Other applications of the NWPL include wetland restoration, establishment, and enhancement projects. The list is effective as of 2 November 2021 and will be used in any wetland delineations performed after this date. Completed wetland delineation/determination forms should reference the version of the NWPL used to complete the form. The final NWPL is available at https://wetland-plants.sec.usace.army.mil/. (preferred browsers are Chrome and Firefox)
2 September 2021 - Flood Recovery and Repair Activities in the Galveston District
The purpose of this Special Public Notice is to provide guidance and a summary of exemptions and permits which may be required for the protection and repair of existing flood or other storm related damaged structures, damaged land areas, damaged fills, and response operations under the authority of Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) and Section 404 of the Clean Water Act (33 USC 1344).
8 April 2021 - SWG-2012-00381 - Public Notice
The U.S. Army Corps of Engineers (Corps) Galveston District has extended the comment period for the public notice until April 20, 2021 for the permit application SWG-2012-00381-Space Exploration Technologies, Inc. (Space X) in Cameron County, Texas. Please submit your comments to email@example.com
24 March 2021 - Draft Changes to the 2020 National Wetland Plant List (NWPL) and solicitation of public comments
The U.S. Army Corps of Engineers (USACE), as part of an interagency effort with the U.S. Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service (FWS) and the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS), is announcing the availability of the draft changes to the 2020 NWPL and its web address to solicit public comments. The public now has the opportunity to comment on the proposed changes to wetland indicator status ratings for five plant species in select regions and the addition of 22 new plant species to the NWPL. The Federal Register Notice (FRN) for the 2020 NWPL update can be found here: https://www.govinfo.gov/content/pkg/FR-2021-03-24/pdf/2021-05989.pdf
. The public comment period ends on 24 May 2021.
The 27 species and their draft 2020 wetland ratings by region, as well as the FRN, can be viewed at the NWPL homepage, http://wetland-plants.usace.army.mil/
, under “2020 NWPL Update Information.” A link to provide general or species-specific comments is also available at this location.
Users are encouraged to submit literature citations, herbaria records, experiential references, monitoring data, and other relevant information. Specific knowledge of, or studies related to, individual species are particularly helpful. Commenters should use their regional botanical and ecological expertise, field observations, reviews of the most recent indicator status information, appropriate botanical literature, floras, herbarium specimens with notation of habitat and associated species, habit data, relevant studies, and historic list information. Providing ratings without supporting documentation or information is not recommended. All submitted comments and information will be compiled and sent to the National Panel for their consideration.
USACE is also seeking comments regarding the administrative change to the South Pacific Islands subregion and the NWPL update process. Detailed information on the update process, protocol, and technical issues can be found in the following documents (available on the “NWPL Publications” web page referenced above):
1. Lichvar, Robert W. and Minkin, Paul. Concepts and Procedures for Updating the National Wetland Plant List. Sept 2008. ERDC/CRREL TN-08-3
2. Lichvar, Robert W. and Gillrich, Jennifer J. Final Protocol for Assigning Wetland Indicator Status Ratings during National Wetland Plant List Update. Sept 2011. ERDC/CRREL TN-11-1
USACE administers the NWPL for the United States and its territories. The NWPL provides plant species indicator status ratings, which are used in determining whether the hydrophytic vegetation factor is met when conducting wetland delineations under the Clean Water Act and wetland determinations under the Wetland Conservation Provisions of the Food Security Act. Other applications of the NWPL include wetland restoration, establishment, and enhancement projects. Additions or deletions to the NWPL represent new records, range extensions, nomenclatural and taxonomic changes, and newly proposed species. The latest review process began in 2020 and included review by Regional Panels and the National Panel.
8 March 2021 - 2021-A Texas Regional Conditions, Texas Clean Water Act (CWA) Section 401 Water Quality Certifications, and Texas Coastal Zone Management Act Consistency-Public Notice
The U.S. Army Corps of Engineers (Corps) Southwestern Galveston District, on 8 March 2021, published a public notice to announce and convey the 2021-A Texas Regional Conditions, Texas CWA Section 401 Water Quality Certifications, and the Texas Coastal Zone Management Act consistencies. These documents and certifications will go into effect for the subject 16 nationwide permits (NWPs) on 15 March 2021 and are enclosed with the public notice. The Corps is not seeking comments at this time. The public notice is available here.
13 January 2021 - 2021 NWP Reissuance - Public Notice
The U.S. Army Corps of Engineers (Corps), on January 13, 2021, published a final rule in the Federal Register (86 FR 2744) announcing the reissuance of 12 existing nationwide permits (NWPs) and four new NWPs, as well as the reissuance of NWP general conditions and definitions with some modifications. These 16 NWPs will go into effect on March 15, 2021, and will expire on March 14, 2026. The public notice is available here.
Historical Regulatory Hot Topics
Important Information on the Department of the Army Permitting Process and use of Nationwide Permits in the San Jacinto Waste Pits
Updated Jurisdictional Delineation GPS Procedures
To improve the customer service experience, the Regulatory Division has now established a Regulatory Hotline at 409-766-3869